Opinion
04-18-2017
Derrick SPENCER, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Appellant, Luellen Jaeger doing business as Alt Jay Realty Co., Defendant–Respondent. [And a Third–Party Action].
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for appellant. Ephrem J. Wertenteil, New York, for Derrick Spencer, respondent. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for Luellen Jaeger, respondent.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for appellant.
Ephrem J. Wertenteil, New York, for Derrick Spencer, respondent.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for Luellen Jaeger, respondent.
Friedman, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered May 4, 2015, which, to the extent appealed from, inter alia, denied defendant the City of New York's motion for summary judgment dismissing the complaint and cross claims against it, unanimously reversed, on the law, without costs, and the City's motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff allegedly fell when his foot became caught in a crack on a sidewalk in front of a building owned by defendant Jaeger. The crack was next to a metal plate, or marker, owned by the City. The City is entitled to summary judgment, because it established that it did not have prior written notice of the alleged defective sidewalk and that none of the exceptions to the statutory rule requiring such notice applied (see Administrative Code of City of N.Y. § 7–201[c][2] ; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104[1999] ). The marker on the sidewalk did not confer a special use or benefit upon the City, and therefore the "special use" exception does not apply (see Amabile, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; see also Oboler v. City of New York, 8 N.Y.3d 888, 890, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007] ; Chambers v. City of New York, 147 A.D.3d 471, 47 N.Y.S.3d 17 [1st Dept.2017] ).